Decisions and judgments relating to the Srebrenica massacre

42. Many important decisions and judgments relating to the Srebrenica massacre have been published, most importantly by the following judicial institutions:

(a) The International Criminal Tribunal for the Former Yugoslavia

43. Several individuals have been charged before the International Criminal Tribunal for the Former Yugoslavia (ICTY) in connection with the Srebrenica massacre, among them Major General Radislav Krstić who shortly after the fall of Srebrenica became commander of the VRS’s Drina Corps. On 2 August 2001 ICTY’s Trial Chamber delivered a 260-page judgment (IT-98-33-T) finding him guilty of genocide, persecutions and murder and sentencing him to forty-six years’ imprisonment.

44. The Trial Chamber’s judgment itself gives a detailed description of the events surrounding the fall of Srebrenica to the VRS and the massacre that followed.

45. Major General Krstić appealed against his conviction and sentence.

He did not challenge the Trial Chamber’s description of events, focusing

instead on the nature and extent of his criminal responsibility. Ultimately the Appeals Chamber found that, absent proof of genocidal intent, Major General Krstić had not been a principal perpetrator of the crimes committed.

It did, however, find him guilty of aiding and abetting genocide and crimes against humanity and reduced his sentence to thirty-five years (judgment of 19 April 2004, IT-98-33-A).

(b) The Human Rights Chamber for Bosnia and Herzegovina

46. The Human Rights Chamber for Bosnia and Herzegovina was a domestic human rights court set up under the Human Rights Agreement set out in Annex 6 to the Dayton Peace Agreement. It had fourteen judges, called “Members”, six of whom were nationals of Bosnia and Herzegovina (two Bosniacs, two Croats, two Serbs), the remaining eight being nationals neither of Bosnia and Herzegovina nor of any neighbouring state. It existed until the end of 2003.

47. On 7 March 2003 the Human Rights Chamber gave a decision on forty-nine applications (the Selimović and Others decision). These applications were taken from among some 1,800 similar applications brought before the Human Rights Chamber, all related to the Srebrenica events.

48. The Human Rights Chamber held that it lacked jurisdiction ratione temporis to consider the events occurring before the entry into force of the Human Rights Agreement on 14 December 1995. It did, however, find violations of Articles 3 and 8 of the Convention both taken alone and in conjunction with Article 14 of the Convention as regards the failure to provide information to the applicants about their missing relatives and to conduct any meaningful investigation. It added that “[i]n the context of the Srebrenica cases, these violations [were] particularly egregious since this event [had] resulted in the largest and most horrific mass execution of civilians in Europe in the second half of the twentieth century. ....”. It ordered the Republika Srpska to disclose all relevant information in its possession, to release any missing captives still alive, and to conduct a “full, meaningful, thorough, and detailed investigation”. In addition, it ordered the Republika Srpska to pay a total of four million Bosnia and Herzegovina convertible marks (BAM) to the Foundation of the Srebrenica-Potočari Memorial and Cemetery.

(c) The International Court of Justice

49. On 20 March 1993 the then Republic of Bosnia and Herzegovina initiated proceedings in the International Court of Justice (ICJ) against the then Federal Republic of Yugoslavia alleging, as relevant to the case before the Court, violations of the Convention on the Prevention and Punishment of the Crime of Genocide. After the entry into force of the Dayton Peace Agreement, the Republic of Bosnia and Herzegovina was succeeded as

applicant party by Bosnia and Herzegovina. The Federal Republic of Yugoslavia, after its dissolution, was replaced as respondent party first by Serbia and Montenegro and finally by Serbia, albeit that any responsibility for past events determined by the ICJ involved at the relevant time the State of Serbia and Montenegro.

50. The ICJ gave judgment on 26 February 2007 (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J.

Reports 2007, p. 43). As regards the Srebrenica massacre, it based its findings of fact on those of ICTY in the above-mentioned judgment of the Trial Chamber in the Krstić case, on ICTY’s judgment in the Blagojević case (IT-02-60-T, Trial Chamber Judgment, 17 January 2005), and on the report of the Secretary-General of the United Nations (see paragraph 25 above).

51. The ICJ held, inter alia, that acts of genocide had been committed by members of the VRS in and around Srebrenica from about 13 July 1995 (loc. cit., §§ 291 and 297). However, the decision to commit these acts had been made by individual members of the leadership of the VRS; there was nothing to prove that they had been planned, or committed, by persons for whom the respondent was responsible, or with the knowing complicity of the respondent. The massacre could therefore not be imputed to Serbia and Montenegro (loc. cit., §§ 413-415; §§ 423-424).

52. It held, nonetheless, that an obligation to prevent genocide existed, albeit a qualified one. The obligation in question was one of conduct and not one of result, in the sense that a State could not be under an obligation to succeed, whatever the circumstances, in preventing the commission of genocide: the obligation of States parties was rather to employ all means reasonably available to them, so as to prevent genocide so far as possible. A State did not incur responsibility simply because the desired result was not achieved; responsibility was however incurred if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide.

53. It went on to find that the authorities of the FRY, and above all its president, Mr Slobodan Milošević, had been aware of the tensions reigning in the Srebrenica area between the various ethnic groups and thus of the danger that genocide might occur. Although undeniably possessing influence over the VRS by dint of “political, military and financial links”

with it (loc. cit., § 435), they had not brought their influence to bear on the VRS to prevent the genocide from occurring. The international responsibility of Serbia was thereby engaged (loc. cit., § 438).